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Water management rule making waves

(Editor’s note: This is the first in a two-part series on the soon-to-be-proposed water management rule for the Dungeness Valley. This week’s article is a plain English explanation of Washington water laws and the rule’s legal underpinnings. Next week: a look at the rule’s impact on local homeowners, farmers, developers and the City of Sequim.)

It’s back.

After a one-year delay, the Washington Department of Ecology (“Ecology”) is expected soon to issue a draft rule regarding the use of surface water and groundwater within the Dungeness Valley.

The rule, which has been under discussion since 2006, has at every step along the way been subjected to intense scrutiny, particularly by those who are concerned it may stifle development within the valley.

The rule results from two previous actions: In 1998 the Washington Legislature passed a law establishing a framework for developing local solutions to watershed issues. The “Watershed Management Act” says each local “Planning Unit” must first assess the local availability of water, taking into account both current and future water use. The law also gives each Planning Unit the option to consider additional planning elements: water quality, aquatic and riparian habitat, instream flows for streams and rivers, and water storage potential.

With support from Clallam County, the City of Port Angeles, the S’Klallam tribes and Ecology, the Dungeness River Management Team and the Elwha-Morse Management Team created the Elwha-Dungeness Watershed Plan. Finalized in 2005, it incorporates both the required and the optional elements.

It recommends the following:
• Adopt by rule the recommended instream flow levels for streams and tributaries.
• Protect and continue to restore flows in the Dungeness mainstem.
• Negotiate measures to provide future drinking water while protecting late summer and fall stream flows.
• Develop aquifer and off-channel storage and conservation as sources of new water supplies and as a means to minimize effects on late-season stream flows.
• Emphasize the need for new development to use existing public water systems wherever possible.
The proposed rule is an outgrowth of that plan.

Complications ensue

The issue is highly complex. Marguerite Glover, a local Realtor who has participated in the discussions since the beginning, says even now, “We have well-educated people who don’t understand the preliminary draft rule.”

In late 2010, rule development was put on hold while local water resource officials, and the public, held further discussions on the rule and its implications. The delay coincided with a request by Gov. Christine Gregoire who as a cost-cutting measure asked her agencies to put off any non-critical new rule-making for one year.

Ecology now plans to propose the new rule formally in February 2012, with an anticipated adoption date set for August 2012.

The rule will cover eastern Clallam County from Bagley Creek to Bell Creek.

Instream flow

Perhaps most importantly, the new rule will establish for the first time exactly how much water should flow in the Dungeness River as well as nine additional water bodies, including Bell Creek and Siebert Creek.

“Instream flow” is a legal term, defined as the flow “needed to protect and preserve in-stream resources and values, such as fish, wildlife and recreation.”

The most contentious part of the rule concerns Ecology’s comment that after the instream flow is established, “new water uses ... will be subject to interruption when stream flows drop below the established instream flow levels.”

Ecology is quick to note that “some exceptions will be allowed.” Ann Soule, a hydrogeologist with Clallam County Environmental Health Services, said that most importantly the rule provides water for use within a residence.

Because an instream flow rule is only effective beginning with the date of its adoption, the new rule will be “junior” to existing water rights in the valley, including those of the valley’s irrigators. That should leave the issue cut and dried, but in certain areas of Washington, including the Dungeness Valley, the rights that have been established actually exceed the amount of water in the river. The Dungeness River is, in legal terms, “over-appropriated.”

WA water law
The Department of Ecology says water law in Washington is based on two fundamental legal concepts:

1) All surface water and groundwater are owned by the public and as such are regulated by the state government. That includes establishing a required “instream flow” for streams and rivers.

Regulating the water within the Dungeness Valley is made more difficult, critics of the new plan say, because the to-be-proposed rule would establish an instream flow rate that is higher than the average natural flow rate of the river for much of the year.

Glover said she has concerns with the proposed inflow rule. “While average winter flows in December through February are approximately 400 cubic feet per second (cfs), the Preliminary Draft Instream Flow Rule is looking to give the river a water right of 575 cfs for December through March.”

She says that data collected from 1980 to 2009 show that “From late August to the end of October ... the river couldn’t attain an average of 150 cfs above the irrigation diversions.” In fact the flow was less than 105 cfs for the same months when the diversions and other losses were taken into account.

Nevertheless, the draft rule “seeks to give the river a water right of 180 cfs, for August through October.”

“Why does the river get a right higher than its flow?” Glover asked.

Ann Wessel, instream flow rules coordinator with Ecology, said her department “regards the minimum permissible flow consistent with legislative intent as the lowest flow capable of protecting and preserving instream values, when the amount of water is actually in the stream after senior rights have been satisfied.”

Brad Caldwell with the Washington Department of Ecology provided a plain English explanation, saying, “A minimum instream flow is not the minimum amount of water that will be left in the stream for fish.” In other words, there could be less.

That’s true, he said, because “Ecology cannot affect existing water rights. We cannot make someone with a valid water right put water back in the river to help fish.”

2) Washington adheres to the “prior appropriation doctrine of water law,” a first-come first-served system in which every water right has a priority date. The older the priority date, the more senior the water right.

The most senior rights to Dungeness River water are owned by the valley’s irrigators. In response to requests, the irrigators already have reduced their use and have enclosed much of the water in pipes to prevent its loss through evaporation and leakage.

The local Native American tribes also have a say in river matters via treaties regarding fisheries resources. Hydrogeologist Soule said, “Those agreements have been part of the picture for a long time.”

Rules concerning the flow of water in the Dungeness and its tributaries also involve the hundreds of land and home owners who have private wells within the valley because Ecology believes that pumping water out of the ground reduces the amount of water that would otherwise naturally move into the streams and rivers.

Currently small, single-owner wells are not required to have a water permit from Ecology. But, the agency notes, “Although exempt from permitting requirements, these are legal water rights that must be managed along with other water rights issued by the State of Washington.

“Thousands of wells already exist in the Dungeness Basin. Add in the thousands expected in the future and you can see how withdrawing groundwater can significantly affect the amount of water in our streams and aquifers. Adding these impacts to already low stream flows could devastate aquatic life.”

Critics of the plan say Ecology grossly overstates the impact of private wells, particularly if the water is drawn from a lower aquifer.

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